Justice Kennedy and the Second Amendment:
What is Justice Kennedy likely to do in the Second Amendment case the Court has granted?
As a general rule, Justice Kennedy tends to construe the Bill of Rights so its protections apply broadly but often yield to competing interests. If the question is whether a constitutional protection applies in an abstract sense to a new set of facts, Justice Kennedy is often inclined to answer that question in the affirmative. On the other hand, Kennedy often finds that the right gives way to competing governmenet interests such as law enforcement needs, security, finality, etc. (These are obviously enormous oversimplifications, but I think it's a pretty good first cut.)
What does that mean for the Second Amendment case? Well, I looked into my SCOTUS 330CLe Model Crystal Ball (patent pending, with optional GPS system), and it's predicting that Justice Kennedy will conclude that the Second Amendment does in fact create an individual right. It also tells me that Kennedy will endorse a relatively deferential standard of review that will end up allowing a great deal of gun regulation.
UPDATE: I have edited the post a bit for style.
As a general rule, Justice Kennedy tends to construe the Bill of Rights so its protections apply broadly but often yield to competing interests. If the question is whether a constitutional protection applies in an abstract sense to a new set of facts, Justice Kennedy is often inclined to answer that question in the affirmative. On the other hand, Kennedy often finds that the right gives way to competing governmenet interests such as law enforcement needs, security, finality, etc. (These are obviously enormous oversimplifications, but I think it's a pretty good first cut.)
What does that mean for the Second Amendment case? Well, I looked into my SCOTUS 330CLe Model Crystal Ball (patent pending, with optional GPS system), and it's predicting that Justice Kennedy will conclude that the Second Amendment does in fact create an individual right. It also tells me that Kennedy will endorse a relatively deferential standard of review that will end up allowing a great deal of gun regulation.
UPDATE: I have edited the post a bit for style.
Related Posts (on one page):
Ever hear of the First Amendment, wherein some speech is not really speech? They do it all the time. In fact, they are quite adept at it.
That said, abortion is highly regulated, as you no doubt are aware.
It won't matter in this case. Gun owners are not idiots. They will never give up their guns, whatever the Court permits the authorities to do.
Just as the pro-choicers say that back-alley abortions will exist if Roe is overturned, if the Court permits restrictive gun laws, then all they'll do is make outlaws out of everyone trying to protect themselves.
I'm sorry, what was the 'right' in Lawrence?
What was the level of review?
Thank goodness Lawrence gave us strict scrutiny for gay sodomy! Oh, wait... nevermind.
Justice Kennedy is like a Presidential candidate. He can't simply answer "yes" or "no."
So... basically something that matches up roughly with current public opinion and isn't too conservative for Linda Greenhouse.
So I agree, the result will be "a relatively deferential standard of review that will end up allowing a great deal of gun regulation". That is, pretty much the status quo.
There will be a 4-1-4 plurality decision.
Roberts, Alito, Thomas and Scalia will write an intense plurality opinion that affirms the Second Amendment guarantees an individual right to keep and bear arms for personal and civil defense; that this right applies to DC and also to the States (although the incorporation of the states would be dicta); and that infringement of this right requires strict scrutiny.
Kennedy will concur with the judgment in that the DC gun ban in question is unconstitutional. However, he will disagree with the reasoning and will seriously water down the plurality, writing that the individual right is not very strong. He will say the DC ban fails a rational basis test, and that rational basis is the appropriate test. He will say it applies to DC, but is not incoroprated to the states under the 14th Amendment (again, dicta).
Here is the scary part:
The dissents could be concur in part, dissent in part, with Kennedy's opinion. They could agree with the watering down of the individual right. They could agree that rational basis is the test, but disagree that the DC ban fails rational basis. In this case, what could theoretically happen is that a MAJORITY of the court says "not so much" to the individual right and establishes rational basis as THE standard for ALL gun laws -- even while rejecting the DC gun ban.
There is a saying that bad facts make bad law. In this case, given the D.C. law, I think Kennedy is going to be hard pressed to make any distinctions.
Don't be silly. When Kennedy said that we have the right to do these things, he meant that HE has the right to say what is and is not a legitimate concept of existence./sarc
How and to what extent does sharing an "inside view" of your Justice's jurisprudential views square with the confidentiality obligation of clerks?
I'm not slinging accusations around here, I'm genuinely curious. You haven't expressly revealed a confidence or predicted his vote, but discussing his views generally tends in the direction of at least the latter. (If it didn't, it wouldn't be interesting.) There's a matter of degrees here. Where do you draw the line? And do different Justices have different expectations in this regard?
I can easily see a 9-0 or 8-1 decision on the individual right issue (JPS, maybe). As alluded to in many of the comments above, however, the fight will be over the standard.
I'm going to go out on a limb and predict that the Court will rule 9-0, in a noncontroversial and brief section A, that the Second Amendment protects an individual right to keep arms (hence the wording of the question), but will fracture on the standard. AS, SA, CT will want strict scrutiny, and find all three provisions unconstitutional. CJ R, AK, and maybe SB and DS will argue for some sort of intermediate scrutiny, under which the three provisions would also likely not stand. G and JPS may (but not necessarilly) argue for rational basis scrutiny and find that one or more of the challenged regulations pass the scrutiny.
Just some thoughts. There are a number of ways it can turn out. I, for one, am not convinced that Souter will find against an individual right or that Scalia is necessarilly a solid vote for strict scrutiny.
A strong pro-individual rights decision is ideological pleasing to me as well as most conservatives and libertarians.
A decision reversing the DC Circuit, however, would be more politically pleasing to Republicans. It would strongly motivate pro-gun voters to come out and support the GOP presidential nominee. Not merely in "red" states but also in "blue" ones. It would have a huge impact in Pennslyvania and especially Ohio. Might make thedifference in Ohio even.
Depending on how the Dem freshman congess people react, it should help the GOP in the House and the Senate also.
Even Rudy would benefit. Whatever his past gun stands, compared to any Dem nominee, he is, in his current incarnation, pro-gun. The need to appoint the right justices angle would work well for him.
A weak, Kennedy driven decision would likely still benefit the GOP, the angle would still be appointing justices.
(emphasis mine)
Do we actually view the Constitution as creating rights? I would think it more rational to think of it as "recognizing" rights that exist on their own, because that's how I think the framers, influenced by Locke et al, would have considered it.
Really? Is this based on any track record of these 4 justices, or just the assumption that they "vote conservative"?
I just don't see "strict scrutiny" being upheld, and I think that there will be some surprises. Scalia in particular may not decide that an originalist reading supports an unfettered right to keep whatever arms one likes.
Bonus points if Kennedy explicitly states that they do not reach any 14th Amendment/incorporation questions, and that the decision is binding only on DC-as-federal-entity.
And this assertion is based on . . . what? All the gun jurisprudence the Court has heard? Their stated opinions in speeches and other writings? Or simply your ill-informed guess based on how they have ruled in other unrelated contexts? If one or more of the four find an individual right, can we expect a retraction? Thought not.
I've got a Benji on the contrary position, and I'll even be a good sport about it and give you a "spread" of two justices. So if it's 7-2 on the issue, you still win. E-mail me if you're interested.
My bet is there won't be a single vote on the Court for strict scrutiny, and certainly not 4.
Wrong. The justices simply invoke Article III, Section 4 of the Constitution, which states "The judiciary shall have power to override any provision of this Constitution if there is a really, really good reason." It's there in the original - it's just written in invisible ink that you can only read after ebing initiated into the judiciary.
Crazytrain,
The combined topic of gay sex and gun control were brought up this week by this paper by Glenn Reynolds. Not everybody that draws comparisons of the two topics is a repressed right wing hack, Reynolds isn't repressed. He makes a fair comparison of the regulation courts have allowed of an unenumerated right, and an enumerated right. Indeed why should people "free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause", have less regulation than people exercising rights under the second amendment that "shall not be infringed".
Assuming an individual right is (once again) a guaranteed right where does the line start on all the new challenges? It'll open the courts to a huge flood of challenges that I'd be willing to bet they'd like to avoid. A challenge on the '86 law prohibiting "new" automatic weapons to members of the unorganized militia, the $200 tax on owning a "militia appropriate weapon" It's a big can or worms they're playing with.
There were already laws on the books against public lewdness, child abuse and rape. To lump all those as "gay sex regulations" is incorrect, imho.
Since when do we consider the Bill of rights as "creating" rights, rather than recognising pre-existing rights?
So we can own any weapon that is "part of the ordinary military equipment" or could "contribute to the common defense"?
That would certainly shake up a few of those assault gun bans. Where's my RPG, M-16 &SAM? Those are all part of the "ordinary military equipment" and would contribute to the common defense.
Although unlikely, I wonder if any of the Justices will bring up the issue of the modern reality of terrorism in the context of self-defense and the common defense?
There were already laws on the books against public lewdness, child abuse and rape. To lump all those as "gay sex regulations" is incorrect, imho.
It's certainly true that those regulations cover straight sex as well as gay sex, but that just reinforces my point. There are some people who don't believe in a right to gay sex. Some of them say if there is such a right it can't be meaningfully regulated. But nobody doubts the existence of a right to straight sex, and everyone concedes that it can be regulated. It just so happens that both kinds of sex can be regulated the same way.
"There he is!"
*BANG*
"Damnit. Drive around the block a couple times. I gotta reload."
Similarly, there would be no protection from search and seizure in automobiles, airplanes, or other "modern" technologies.
Wiretapping of phone calls and the Internet? Why would the government need warrants for those? They didn't exist in 1791.
I guess that the "cruel and unusual punishments" clause would only apply to such as were known in 1791.
Get back to me when you are prepared to engage in a serious conversation.
1. Does the Second Amendment guarantee a right to be armed for self-defense in national parks? I feel rather nervous in Yellowstone without a grizzly bear discouragement device. The courts might well find that hunting can be prohibited, and thus hunting weapons, but that a handgun is protected if carried for self-defense.
2. Does the Second Amendment guarantee a right to carry a firearm for self-defense in DC, the territories, and other federal jurisdictions? My guess is that courthouses, jails, and military installations would not be protected, but that most other places would, perhaps allowing licensing of such carry, as long as it conforms to equal protection requirements.
3. Does the Second Amendment apply to the States? Sure, and that's where the excitement will really start.
That's the rub, of course. That dreaded "Living Constitution" is helpful sometimes, isn't it?
I don't have a problem with that. I support making misuse of them a crime. Not mere possession. There is a danger that I may misuse my ability to speak but I get to keep my tongue.
Living, breathing, constantly mutating Constitution is what happens when entirely new principles suddenly get found hiding in places that no one ever suspected them before. That's why what was a FELONY everywhere (theoretically a capital felony in most of the states) in 1791 is now a constitutional right.